(SYKES LOGO)
Exhibit 10.20
EMPLOYMENT AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT DESCRIBES THE BASIC LEGAL
AND ETHICAL RESPONSIBILITIES THAT YOU ARE REQUIRED TO OBSERVE AS AN EXECUTIVE
EXPOSED TO HIGHLY SENSITIVE TECHNOLOGY AND STRATEGIC INFORMATION. CONSULT WITH
YOUR LEGAL COUNSEL IF ALL THE TERM OR RENEWAL PERIOD AND PROVISIONS OF THIS
AGREEMENT ARE NOT FULLY UNDERSTOOD BY YOU.
THIS AGREEMENT is made as of the 1st day of August, 2004, by and between
XXXXX ENTERPRISES, INCORPORATED, a Florida corporation (the "Company"), and
XXXXXXX X. XXXXX (the "Executive").
WITNESSETH:
WHEREAS, the Executive currently serves as President and Chief Operating
Officer of the Company, and the Company has offered to promote the Executive to
the positions of President and Chief Executive Officer; and
WHEREAS, the Executive desires to accept the Company's offer and to
continue his employment with the Company, on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements of
the parties contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
covenant and agree as follows:
1. EMPLOYMENT AND DUTIES. Subject to the terms and conditions of this
Agreement, the Company shall employ the Executive during the Term or Renewal
Period(s) (as hereinafter defined) in the positions of President and Chief
Executive Officer ("CEO"). As President and CEO, the Executive shall report
directly to the Company's Board of Directors and shall render to the Company
such management and policy-making services of the type customarily performed by
persons serving in similar capacities with other employers that are similar to
the Company, together with such other duties with which he is charged by the
Company's By-laws and subject to the overall direction and control of the
Company's Board of Directors. The Executive accepts such employment and agrees
to devote his best efforts and entire business time, skill, labor, and attention
to the performance of such duties. The Executive agrees to promptly provide a
description of any other commercial duties or pursuits engaged in by the
Executive to the Company's Board of Directors. If the Board of Directors
determines in good faith that such activities conflict with the Executive's
performance of his duties hereunder, the Board of Directors shall notify
Executive within thirty (30) days and the Executive shall promptly cease such
activities to the extent as directed by the Board of Directors. If the Board of
Directors does not provide such notice, Executive shall be free to engage in
such commercial duties or pursuits. It is acknowledged and agreed that such
description shall be made regarding any such activities in which the Executive
owns more than 5% of the ownership of the organization or which may be in
violation of Section 5 hereof, and that the failure of the Executive to provide
any such description shall enable the Company to terminate the Executive for
Cause (as provided in Section 6(c) hereof). The Company agrees to hold any such
information provided by the Executive confidential and not disclose the same to
any person other than a person to whom disclosure is reasonably necessary or
appropriate in light of the circumstances. In addition, the Executive agrees to
serve without additional compensation if elected or appointed to any office or
position, including as a director, of the Company or any subsidiary or affiliate
of the Company; provided, however, that the Executive shall be entitled to
receive such benefits and additional compensation, if any, that is paid to
executive officers of the Company in connection with such service.
2. TERM OR RENEWAL PERIOD. Subject to the Term or Renewal Period(s) and
conditions of this Agreement, including, but not limited to, the provisions for
termination set forth in Section 6 hereof, the employment of the Executive under
this Agreement shall commence on the effective date hereof and shall continue
for the term of employment stated in Exhibit A attached hereto and incorporated
herein (such Term shall herein be defined as the "Term"). Provided, however,
that this Agreement shall renew automatically for successive one (1) year
periods ("Renewal Periods") unless either party gives written notice of
termination at least that number of days set forth on Exhibit A before the end
of the Term or Renewal Period, as applicable (the "Renewal Notice Period"). The
Executive agrees that some portions of this Agreement, including Sections 4, 5,
6 and 10 hereof, will remain in force after the termination of this Agreement.
3. COMPENSATION.
(a) Base Salary and Bonus. As compensation for the Executive's services
under this Agreement, the Executive shall receive and the Company shall pay a
weekly base salary set forth on Exhibit A. Such base salary may be increased but
not decreased during the Term or Renewal Period in the Company's discretion
based upon the Executive's performance and any other factors the Company deems
relevant. Such base salary shall be payable in accordance with the policy then
prevailing for the Company's executives. In addition to such base salary, the
Executive shall be entitled during the Term or Renewal Period to a performance
bonus and shall be eligible to participate in and receive payments or awards
from all other bonus and other incentive compensation, stock option and
restricted stock plans as may be adopted by the Company, all as determined by
the Compensation Committee of the Board of Directors in its sole discretion.
(b) Payments. All amounts paid pursuant to this Agreement shall be subject
to withholding or deduction by reason of the Federal Insurance Contribution Act,
federal income tax, state and local income tax, if any, and comparable laws and
regulations.
(c) Other Benefits. The Executive shall be reimbursed by the Company for
all reasonable and customary travel and other business expenses incurred by the
Executive in the performance of the Executive's duties hereunder in accordance
with the Company's standard policy regarding expense verification practices. The
Executive shall be entitled to that number of weeks paid vacation per year that
is available to other executive officers of the Company in accordance with the
Company's standard policy regarding vacations and such other fringe benefits as
may be set forth on Exhibit A and shall be eligible to participate in such
pension, life insurance, health insurance, disability insurance, and other
executive benefits plans, if any, which the Company may from time to time make
available to its executive officers generally.
4. CONFIDENTIAL INFORMATION.
(a) The Executive has acquired and will acquire information and knowledge
respecting the intimate and confidential affairs of the Company, including,
without limitation, confidential information with respect to the Company's
technical data, research and development projects, methods, products, software,
financial data, business plans, financial plans, customer lists, business
methodology, processes, production methods and techniques, promotional materials
and information, and other similar matters treated by the Company as
confidential (the "Confidential Information"). Accordingly, the Executive
covenants and agrees that during the Executive's employment by the Company
(whether during the Term or Renewal Period hereof or otherwise) and thereafter,
the Executive shall not, without the prior written consent of the Company,
disclose to any person, other than a person to whom disclosure is reasonably
necessary or appropriate in connection with the performance by the Executive of
the Executive's duties hereunder, any Confidential Information obtained by the
Executive while in the employ of the Company.
(b) The Executive agrees that all memoranda; notes; records; papers or
other documents; computer disks; computer, video or audio tapes; CD-ROMs; all
other media and all copies thereof relating to the Company's operations or
business, some of which may be prepared by the Executive; and all objects
associated therewith in any way obtained by the Executive shall be the Company's
property. This shall include, but is not limited to, documents; computer disks;
computer, video and audio tapes; CD-ROMs; all other media and objects concerning
any technical data, methods, products, software, research and development
projects, financial data, financial plans, business plans, customer lists,
contracts, price lists, manuals, mailing lists, advertising materials; and all
other materials and records of any kind that may be in the Executive's
possession or under the Executive's control. The Executive shall not, except for
the Company's use, copy or duplicate any of the aforementioned documents or
objects, nor remove them from the Company's facilities, nor use any information
concerning them except for the Company's benefit, either during the Executive's
employment or thereafter. The Executive covenants and agrees that the Executive
will deliver all of the aforementioned documents and objects, if any, that may
be in the Executive's possession to the Company upon termination of the
Executive's employment, or at any other time at the Company's request.
(c) In any action to enforce or challenge these Confidential Information
provisions, the prevailing party is entitled to recover its attorney's fees and
costs.
5. COVENANT NOT-TO-COMPETE AND NO SOLICITATION. Executive recognizes that
the Company is in the business of employing individuals to provide specialized
and technical services to the Company's Clients. The purpose of these Covenant
Not-to-Compete and No Solicitation provisions are to protect the relationship
which exists between the Company and its Client while Executive is employed and
after Executive leaves the employ of the Company. The consideration for these
Covenant Not-to-Compete and No Solicitation provisions is the Executive's
employment with the Company.
(a) Executive acknowledges the following:
(1) The Company expended considerable resources in obtaining
contracts with its Clients;
(2) The Company expended considerable resources to recruit and
hire employees who could perform services for its Clients;
(3) Through his employ with the Company, Executive will develop a
substantial relationship with the Company's existing or potential
Clients, including, but not limited to, being the sole or primary
contact between the Client and the Company;
(4) Executive will be exposed to valuable confidential business
information about the Company, its Clients, and the Company's
relationship with its Client;
(5) By providing services on behalf of the Company, Executive
will develop and enhance the valuable business relationship between
the Company and its Client;
(6) The relationship between the Company and its Client depends
on the quality and quantity of the services Executive performs;
(7) Through employment with the Company, Executive will increase
his opportunity to work directly for the Client or for a competitor of
the Company; and
(8) The Company will suffer irreparable harm if Executive
breaches these Covenant Not-to-Compete and No Solicitation provisions
of this Agreement.
(b) Executive agrees that:
(1) The relationship between the Company and its Client
(developed and enhanced when the Executive performs services on behalf
of the Company) is a legitimate business interest for the Company to
protect;
(2) The Company's legitimate business interest is protected by
the existence and enforcement of these Covenant Not-to-Compete and No
Solicitation provisions;
(3) The business relationship which is created or exists between
the Company and its Client, or the goodwill resulting from it, is a
business asset of the Company and not the Executive; and
(4) Executive will not seek to take advantage of opportunities
which result from his employment with the Company and that entering
into the Agreement containing Covenant Not-to-Compete and No
Solicitation provisions is reasonable to protect the Company's
business relationship with its Clients.
(c) Restrictions on Executive. During the Term or Renewal Period(s) of
this Agreement and for a period of one (1) year after the termination of
this Agreement, for whatever reason, whether such termination was by the
Company or the Executive, voluntarily or involuntarily, and whether with or
without cause, Executive agrees that he/she shall not, as a principal,
employer, stockholder, partner, agent, consultant, independent contractor,
employee, or in any other individual or representative capacity:
(1) Directly or indirectly engage in, continue in, or carry on
the business of the Company or any business substantially similar
thereto, including owning or controlling any financial interest in any
corporation, partnership, firm, or other form of business organization
which competes with or is engaged in or carries on any aspect of such
business or any business substantially similar thereto;
(2) Consult with, advise, or assist in any way, whether or not
for consideration of any kind, any corporation, partnership, firm, or
other business organization which is now, becomes, or may become a
competitor of the Company in any aspect of the Company's business
during the Executive's employment with the Company, including, but not
limited to, advertising or otherwise endorsing the products of any
such competitor or loaning money or rendering any other form of
financial assistance to or engaging in any form of transaction whether
or not on an arm's length basis with any such competitor;
(3) Provide or attempt to provide or solicit the opportunity to
provide or advise others of the opportunity to provide any services of
the type Executive performed for the Company or the Company's Clients
(regardless of whether and how such services are to be compensated,
whether on a salaried, time and materials, contingent compensation, or
other basis) to or for the benefit of any Client (i) to which
Executive has provided services in any capacity on behalf of the
Company, or (ii) to which Executive has been introduced to or about
which the Executive has received information through the Company or
through any Client from which Executive has performed services in any
capacity on behalf of the Company;
(4) Retain or attempt to retain, directly or indirectly, for
itself or any other party, the services of any person, including any
of the Company's employees, who were providing services to or on
behalf of the Company while Executive was employed by the Company and
to whom Executive has been introduced or about whom Executive has
received information through the
Company or through any Client for which Executive has performed
services in any capacity on behalf of the Company;
(5) Engage in any practice, the purpose of which is to evade the
provisions of this Agreement or to commit any act which is detrimental
to the successful continuation of or which adversely affects the
business or the Company; provided, however, that the foregoing shall
not preclude the Executive's ownership of not more than 2% of the
equity securities of a company whose securities are registered under
Section 12 of the Securities Exchange Act of 1934, as amended;
(6) For purpose of these Covenant Not-to-Compete and No
Solicitation provisions, Client includes any subsidiaries, affiliates,
customers, and clients of the Company's Clients. The Executive agrees
that the geographic scope of this Covenant Not-to-Compete shall extend
to the geographic area where the Company's Clients conduct business at
any time during the Term or Renewal Period(s) of this Agreement. For
purposes of this Agreement, "Clients" means any person or entity to
which the Company provides or has provided within a period of one (1)
year prior to the Executive's termination of employment, labor,
materials or services for the furtherance of such entity's or person's
business or any person or entity that within such period of one (1)
year the Company has pursued or communicated with for the purpose of
obtaining business for the Company.
(d) Enforcement. These Covenant Not-to-Compete and No Solicitation
provisions shall be construed and enforced under the laws of the State of
Florida. In the event of any breach of this Covenant Not-to-Compete, the
Executive recognizes that the remedies at law will be inadequate, and that
in addition to any relief at law which may be available to the Company for
such violation or breach and regardless of any other provision contained in
this Agreement, the Company shall be entitled to equitable remedies
(including an injunction) and such other relief as a court may grant after
considering the intent of this Section 5. It is further acknowledged and
agreed that the existence of any claim or cause of action on the part of
the Executive against the Company, whether arising from this Agreement or
otherwise, shall in no way constitute a defense to the enforcement of this
Covenant Not-to-Compete, and the duration of this Covenant Not-to-Compete
shall be extended in an amount which equals the time period during which
the Executive is or has been in violation of this Covenant Not-to-Compete.
In the event a court of competent jurisdiction determines that the
provisions of this Covenant Not-to-Compete are excessively broad as to
duration, geographic scope, prohibited activities or otherwise, the parties
agree that this covenant shall be reduced or curtailed only to the extent
necessary to render it enforceable.
e) In an action to enforce or challenge these Covenant Not-to-Compete
and No Solicitation provisions, the prevailing party is entitled to recover
its attorney's fees and costs.
f) By signing this Agreement, the Executive acknowledges that he/she
understands the effects of these Covenant Not-to-Compete and No
Solicitation provisions and agrees to abide by them.
6. TERMINATION
(a) Death. The Executive's employment hereunder shall terminate upon his
death.
(b) Disability. If during the Term or Renewal Period(s) the Executive
becomes physically or mentally disabled in accordance with the terms and
conditions of any disability insurance policy covering the Executive, or, if due
to such physical or mental disability the Executive becomes unable for a period
of more than six (6) consecutive months to perform his duties hereunder on
substantially a full-time basis as determined by the Company in its sole
reasonable discretion, the Company may, at its option, terminate the Executive's
employment
hereunder upon not less than thirty (30) days' written notice so long as the
terms of any disability insurance policy, then in effect provide for Executive
to receive disability payments from that date forward.
(c) Cause. The Company may terminate the Executive's employment hereunder
for Cause effective immediately upon notice. For purposes of this Agreement, the
Company shall have "Cause" to terminate the Executive's employment hereunder:
(i) if the Executive engages in conduct which has caused or is reasonably likely
to cause demonstrable and serious injury to Company; (ii) if the Executive is
convicted of a felony as evidenced by a binding and final judgment, order, or
decree of a court of competent jurisdiction; (iii) for the Executive's failure
or refusal to perform his duties or responsibilities hereunder as determined by
the Company's Board of Directors in good faith, if such failure or refusal
continues for a period of ten (10) days after written notice of the same to the
Executive; provided, however, that the Executive also shall be given an
opportunity to explain such failure or refusal to the Board of Directors (but
not the right to address the Board of Directors more than once for any
particular action (or series of actions) or omission (or series of omissions);
(iv) for gross incompetence; (v) for the Executive's violation of this
Agreement, including, without limitation, Section 5 hereof; (vi) for chronic
absenteeism; (vii) for use of illegal drugs; (viii) for insobriety by the
Executive while performing his or her duties hereunder; and (ix) for any act of
dishonesty or falsification of reports, records, or information submitted by the
Executive to the Company.
(d) Termination by the Executive. The Executive may terminate his
employment hereunder at any time and for any reason by delivering written notice
of termination to the Company. However, if the Executive terminates his
employment for Good Reason (as defined below), such termination shall be deemed
to be a termination by the Company without Cause and, therefore, a breach of
this Agreement by the Company. For purposes of this Agreement, the term "Good
Reason" shall mean (i) a Change of Control of the Company (as defined in Section
7 hereof), (ii) a good faith determination by the Executive that there has been
a breach of this Agreement by the Company, (iii) a material adverse change in
the Executive's working conditions or status, (iv) the deletion of, or change
in, either of the following titles of Executive: CEO or President, (v) a
significant relocation of the Executive's principal office, (vi) a significant
increase in travel requirements, or (vii) an impairment of the Executive's
health to an extent that makes the continued performance of his duties hereunder
hazardous to his physical or mental health or his life. If the Executive desires
to terminate his employment for Good Reason, he shall deliver written notice of
termination to the Board of Directors indicating in reasonable detail the facts
and circumstances alleged to provide a basis for such termination and shall
cease performing the Executive's duties hereunder on the date which is thirty
(30) days after delivery of the notice, which date also shall be the date of
termination of the Executive's employment.
(e) Payments Upon Termination. In the event of a termination of the
Executive's employment pursuant to Section 6 or by the Executive, all payments
and Company benefits to the Executive hereunder, except the payments (if any)
provided below, shall immediately cease and terminate. In the event of an early
termination by the Company of the Executive's employment with the Company for
any reason other than pursuant to Section 6(A)(B)(C) or Executive's termination
pursuant to Section 6(D), the Company shall pay the Executive an amount equal to
the Liquidated Damages defined in (f) below (in lieu of actual damages) for the
early termination of his employment. In the event of a termination of the
Executive's employment for any reason other than pursuant to Section 6(A)(B)(C)
or Executive's termination pursuant to Section 6(D), the Covenant Not-to-Compete
set forth in Section 5 hereof shall remain in full force and effect for the
period set forth in (f) below. If the Company terminates the Executive's
employment pursuant to Section 6(A)(B)(C) or the Executive terminates such
employment other than pursuant to Section 6(D), the Executive shall not be
entitled to any Liquidated Damages and the Covenant Not-to-Compete set forth in
Section 5 hereof shall remain in full force and effect as set forth in (g)
below. Notwithstanding anything to the contrary herein contained, and in
addition to any other compensation to which the Executive may be entitled to
receive pursuant to this Agreement, the Executive shall receive all compensation
and other benefits to which he or she was entitled under this Agreement or
otherwise as an executive of the Company through the termination date. The
Executive shall not be entitled to any Liquidated Damages in
the event the Company does not terminate this Agreement but elects not to renew
this Agreement as permitted by Section 2 hereof.
(f) Liquidated Damages and Non-Competition/Solicitation. The Liquidated
Damages ("Liquidated Damages") amount, if due as provided above, shall be equal
to the weekly amount stated as Base Salary on Exhibit A, through the end of the
Term or Renewal Period of the Agreement or for one hundred and four (104) weeks,
whichever is greater. The provisions of Section 5 (the
"Non-Competition/Solicitation Provisions") shall survive the early termination
of this Agreement, by either party, and for any reason, through the end of the
Term or Renewal Period of the Agreement or for one hundred and four (104) weeks,
whichever is greater.
Notwithstanding anything herein to the contrary:
(i) The amount of Liquidated Damages shall not be less than the weekly
amount stated as Base Salary on Exhibit A, times the number of weeks
remaining between the early termination date and the end of the Term or
Renewal Period. The amount of Liquidated Damages shall be paid biweekly in
equal installments over such period.
(ii) In the event of termination of the Executive's employment
pursuant to Section 6(d)(i), Liquidated Damages shall be payable for a
period of one hundred fifty six (156) full weeks following such
termination.
In addition, there shall be added to the Liquidated Damages,
payable during such one hundred and fifty-six full weeks, an amount
determined by multiplying the annual Target Bonus designated or otherwise
indicated for the Executive in the year such change of control occurs by a
factor of three. Such amount shall be payable in addition to and as a part
of the Liquidated Damages payable over such one hundred and fifty-six full
weeks.
Finally, in the event of termination of the Executive's
employment pursuant to Section 6(d)(i), all vesting periods relating to
stock options, stock grants or any other similar type of equity incentive
and/or compensation program shall immediately accelerate and be fully
vested and exercisable at the option of the Executive upon the event of
termination.
(iii) The Non-Solicitation restrictions set forth in Section 5(c)(4)
shall survive the termination of this Agreement and remain in effect for
the greater of one hundred and four (104) full weeks following termination
or the full stated Term or Renewal Period of this Agreement.
(g) Condition Precedent to Receipt of Liquidated Damages. The Executive
expressly agrees that in the event of a termination of this Agreement prior to
the expiration of the Term or Renewal Period, Executive will execute an
agreement containing the waiver and release provisions set forth on Exhibit "B."
The Executive agrees and acknowledges that the execution of such an agreement
upon termination prior to the expiration of the Term or Renewal Period, is a
condition precedent to the obligation of the Company to pay any Liquidated
Damages hereunder. The provisions set forth in Exhibit "B" provide for the
release and waiver of important rights and/or claims that the Executive might
have against the Company at the time of any early termination of this Agreement.
The Executive hereby represents and warrants that he /she has read the attached
Exhibit "B" and fully and completely understands the provisions thereof.
7. CHANGE IN CONTROL. For purposes of Section 6(d) of this Agreement, a
Change of Control shall be deemed to have occurred if the event set forth in any
one of the following paragraphs shall have occurred:
(i) any person or entity, or group thereof acting in concert (a
"Person") (other than (A) the Company or any of its subsidiaries, (B) a
trustee or other fiduciary holding securities under any employee benefit
plan of the Company or any of its subsidiaries, (C) an underwriter
temporarily holding securities pursuant to an offering of such securities,
or (D) a corporation owned, directly or indirectly, by the stockholders of
the Company in substantially the same proportions as their ownership of
stock in the Company), being or becoming the "beneficial owner" (as such
term is defined in Securities and Exchange Commission ("SEC") Rule 13d-3
under the Exchange Act) of securities of the Company which, together with
securities previously owned, confer upon such person, entity or group the
combined voting power, on
any matters brought to a vote of shareholders, of twenty percent (20%) or
more of the then outstanding shares of voting securities of the Company; or
(ii) the sale, assignment or transfer of assets of the Company or any
subsidiary or subsidiaries, in a transaction or series of transactions, if
the aggregate consideration received or to be received by the Company or
any such subsidiary in connection with such sale, assignment or transfer is
greater than fifty-one percent (51%) of the book value, determined by the
Company in accordance with generally accepted accounting principles, of the
Company's assets determined on a consolidated basis immediately before such
transaction or the first of such transactions; or
(iii) the merger, consolidation, share exchange or reorganization of
the Company (or one or more direct or indirect subsidiaries of the Company)
as a result of which the holders of all of the shares of capital stock of
the Company as a group would receive less than fifty-one percent (51%) of
the combined voting power of the voting securities of the Company or such
surviving or resulting entity or any parent thereof immediately after such
merger, consolidation, share exchange or reorganization; or
(iv) the adoption of a plan of complete liquidation or the approval of
the dissolution of the Company; or
(v) the commencement (within the meaning of SEC Rule 13e-4 under the
Exchange Act) of a tender or exchange offer which, if successful, would
result in a Change of Control of the Company; or
(vi) a determination by the Board of Directors of the Company, in view
of the then current circumstances or impending events, that a Change of
Control of the Company has occurred or is imminent, which determination
shall be made for the specific purpose of triggering the operative
provisions of this Agreement.
8. NOTICE. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when hand-delivered, sent by telecopier, facsimile
transmission, or other electronic means of transmitting written documents (as
long as receipt is acknowledged) or mailed by United States certified or
registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive, to the address set forth on the signature page.
If to the Company: Xxxxx Enterprises, Incorporated
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Chairman of the Board of Directors
with a copy to:
Xxxxx Enterprises, Incorporated
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: General Counsel
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that a notice of change of address shall
be effective only upon receipt.
9. ENFORCEMENT AND GOVERNING LAW. It is stipulated that a breach by
Executive of the restrictive covenants set forth in Sections 4 and 5 of this
Agreement will cause irreparable damage to Company or its Clients, and that in
the event of any breach of those provisions, Company is entitled to injunctive
relief restraining Executive from violating or continuing a violation of the
restrictive covenants as well as other remedies it may have. Additionally, such
covenants shall be enforceable against the Executive's successors or assigns or
by successor assigns.
The validity, interpretation, construction, and performance of this
Agreement shall be governed by the internal laws of the State of Florida. Any
litigation to enforce this Agreement shall be brought in the state or federal
courts of Hillsborough County, Florida, which is the principal place of business
for Company and which is considered to be the place where this Agreement is
made. Both parties hereby consent to such courts' exercise of personal
jurisdiction over them.
10. ARBITRATION OF DISPUTES.
(a) Duty to Arbitrate. Except for any claim by the Company to enforce the
restrictive covenants set forth in Sections 4 and 5 above, Company and Executive
agree to resolve by binding arbitration any claim or controversy arising out of
or related to Executive's employment by Company or this Agreement, to include
all matters directly or indirectly related to your recruitment, employment or
termination of employment by the Company including, but not limited to claims
involving laws against discrimination whether brought under federal and /or
state law, and/or claims involving co-employees but excluding workers
compensation claims, whether such claim is based in contract, tort, statute, or
any other legal theory, including any claim for damages, equitable relief, or
both. The duty to arbitrate under this Section extends to any claim by or
against any officer, director, shareholder, employee, agent, representative,
parent, subsidiary, affiliate, heir, trustee, legal representative, successor,
or assign of either party making or defending any claim that would otherwise be
arbitrable under this Section. However, this Section shall not be interpreted to
preclude either party from petitioning a court of competent jurisdiction for
temporary injunctive relief, solely to preserve the status quo pending
arbitration of the claim or controversy, upon a proper showing of the need for
such relief.
(b) The Arbitrator. A single arbitrator will conduct the arbitration in
Tampa, Florida, U.S.A., in accordance with the Commercial Arbitration Rules of
the American Arbitration Association (the "Rules"), and judgment upon the
written award rendered by the arbitrator may be entered in any court of
competent jurisdiction. Notwithstanding the application of the Rules, however,
discovery in the arbitration, including interrogatories, requests for
production, requests for admission, and depositions, will be fully available and
governed by the Federal Rules of Civil Procedure and Local Rules of the United
States District Court for the Middle District of Florida. The parties may agree
upon a person to act as sole arbitrator within thirty (30) days after submission
of any claim or controversy to arbitration pursuant to this Section. If the
parties are unable to agree upon such a person within such time period, an
arbitrator shall be selected in accordance with the Rules. The arbitrator will
not have the power to award punitive or exemplary damages.
(c) Limitations Period. The parties agree that any claim or controversy
that would be arbitrable under this Section must be submitted to arbitration
within one (1) year after the claim or controversy arises and that a failure to
institute arbitration proceedings within such time period shall constitute an
absolute bar to the institution of any proceedings, in arbitration or in any
court, and a waiver of all such claims. This Section will survive the expiration
or early termination of this Agreement.
(d) Governing Law. This Agreement shall be governed in its construction,
interpretation, and performance by the laws of the State of Florida, without
reference to law pertaining to conflict of laws. However, the Federal
Arbitration Act, as amended, will govern the interpretation and enforcement of
this Section.
(e) Attorneys' Fees. The prevailing party in any arbitration or dispute, or
in any litigation, arising out of or related to Executive's employment by
Company or this Agreement, shall be entitled to recover all costs and reasonable
attorneys' fees incurred on all levels and in all proceedings, including, but
not limited to, arbitration, filing, hearing, processing, and witness fees, and
any other costs and fees incurred, in any investigations, arbitrations, trials,
bankruptcies, and appeals.
(f) Severability. Each part of this Section 10 is severable. A holding that
any part of this Section 10 is unenforceable will not affect the duty to
arbitrate under this Section 10.
11. MISCELLANEOUS. No provision of this Agreement may be modified or waived
unless such waiver or modification is agreed to in writing signed by the parties
hereto; provided, however, that the terms of the performance bonus and fringe
benefits set forth or Exhibit A may be amended by the Company in its discretion
without the Executive's consent to the extent provided therein. No waiver by any
party hereto of any breach by any other party hereto shall be deemed a waiver of
any similar or dissimilar term or condition at the same or at any prior or
subsequent time. This Agreement is the entire agreement between the parties
hereto with respect to the Executive's employment by the Company and there are
no agreements or representations, oral or otherwise, expressed or implied, with
respect to or related to the employment of the Executive which are not set forth
in this Agreement. Any prior agreement relating to the Executive's employment
with the Company is hereby superseded and void, and is no longer in effect. This
Agreement shall be binding upon and inure to the benefit of the Company, its
respective successors and assigns, and the Executive and his heirs, executors,
administrators and legal representatives. Except as expressly set forth herein,
no party shall assign any of his or its rights under this Agreement without the
prior written consent of the other party and any attempted assignment without
such prior written consent shall be null and void and without legal effect. The
parties agree that if any provision of this Agreement shall under any
circumstances be deemed invalid or inoperative, the Agreement shall be construed
with the invalid or inoperative provision deleted and the rights and obligations
of the parties shall be construed and enforced accordingly. This Agreement may
be executed in one or more counterparts, each of which shall be deemed to be an
original but all of which together will constitute but one and the same
instrument. This Agreement has been negotiated and no party shall be considered
as being responsible for such drafting for the purpose of applying any rule
construing ambiguities against the drafter or otherwise.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
XXXXX ENTERPRISES, INCORPORATED EXECUTIVE
By: /s/ Xxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxx
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XXXXX X. XXXXXX XXXXXXX X. XXXXX
Address:
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XXXXXXX X. XXXXX
EXHIBIT "A" TO EMPLOYMENT AGREEMENT
TERM: 3 years - August 1, 2004 to July 31, 2007
BASE SALARY: $7,211.54 per week payable bi-weekly. On August 1,
2005, will be eligible for a compensation review with a
contemplated minimum increase of 15%. On August 1,
2006, will be eligible for a compensation review with a
contemplated minimum increase of 10%. The salary
increase will be dependent upon Executive satisfying
certain performance goals established by joint
agreement with the Board of Directors.
PERFORMANCE BONUS: Eligible to participate in a performance based bonus
plan (bonus to be up to 60% of base salary) and other
bonus and incentive compensation, stock option and
restricted stock plans available to other executives.
The specific performance objectives will be determined
by joint agreement between the Board of Directors and
Executive within 60 days of the date hereof.
FRINGE BENEFITS: Eligible for standard executive benefits
RENEWAL NOTICE PERIOD: One hundred and eighty (180) days
THE COMPANY RESERVES THE RIGHT, AT ITS DISCRETION, AT SUCH TIME OR TIMES AS IT
ELECTS, TO CHANGE OR ELIMINATE INCENTIVES OR OTHER BENEFITS.
IN WITNESS WHEREOF, the parties have executed this Exhibit A as of the 1st
day of August 2004.
XXXXX ENTERPRISES, INCORPORATED EXECUTIVE
By: /s/ Xxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxx
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XXXXX X. XXXXXX XXXXXXX X. XXXXX